In a speech that lasted nearly 40 minutes, Koh touched on topics that also included his confirmation process and the role of government lawyers in situations where personal beliefs clash with policy.

“We live in a political environment where people like Dawn Johnsen and Goodwin Liu don’t get confirmed, when there is no one more qualified,” Koh said early in his speech at the Capital Hilton in downtown.

“Goodwin, in Washington you are controversial. In our world you are anything but,” said Koh, whose words led to a standing ovation among the hundreds of luncheon guests. “Goodwin, I would vote for you for anything, and you only have bright days ahead.”

Koh said that even if Liu never becomes a judge, “doesn’t every fan know it’s much more fun to play the game than to be the umpire? So keep playing. You have the right stuff.” Koh called Liu a “symbol” of the American Constitution Society, the left-leaning legal organization that is celebrating its 10th anniversary.

“There is the real world. There is Washington. They are not the same thing,” Koh said, articulating the first guide post. “No matter how many times you come here, Washington is not the real world. Life here is like life nowhere else.”

Koh dedicated part of his speech to discussing the intersection of personal views and policy. As a matter of policy, Koh said, he opposes the death penalty, which he called wrong and counterproductive. But he said he does not think capital punishment is illegal under international law. “That day may come,” he said. “I hope it does come.”

Koh said he can defend the international lawfulness of policies that he would not personally advocate as a matter of human rights policy. “If I wasn’t prepared to make the defense, I shouldn’t have taken the job,” he said.

As a lawyer, Koh said, he defends the government’s right to choose legally available options. First, he said, remove the illegal option from the mix of choices. “Like torture,” Koh said. If an unlawful option comes up, “you should say, ‘No, it’s not legally available’ and not try to figure out a way to pretend that it is,” Koh said.

Koh’s big theme, which he directed at young lawyers: don’t be afraid to speak up and stick by what you say.

To illustrate the point, he described a moment in his confirmation process when he was meeting with a group of his handlers.

“One of them said, ‘You know, you might want to apologize for some of the things you wrote.’ I said to him, ‘Can we get one thing straight? I am not apologizing.’”

“I’ve lived the life I’ve wanted to live. I’ve said the things I’ve wanted to say," Koh said. "If you really want me to say I’m sorry, I’ll say, ‘I’m sorry that my life’s work has been misunderstood.’”

Koh said he understands the “instincts that might lead younger lawyers to clip their own wings. But this is a bad way of living and a bad way of planning your future.”

Comments

Prof Koh is correct that the governmental attorney faces a dilemma between representing his administration’s position and following his conscious. This observation is not ground breaking. Let’s remember that an attorney is obligated to zealously represent his client; it is the attorney’s ethical obligation. At the higher levels of governmental legal representation most attorneys are political appointments or are hired as a result of political patronage; to a certain degree politics are an inherent part of the legal representation.

The nominations of Liu and Johnsen should have been fully considered because both candidates are qualified for their respective positions. Their nominations as well as all others are considered in a political forum. Politics are at the heart of the nomination process. One person might believe that the Republican’s roadblock to the Liu and Johnsen nomination represented a failure of the system. This conclusion is not supported by well settled American political theory. The rejection of these appointments was the results of the checks and balances inherent in the nomination approval process. Democracy if it is to be effective and fair must be administered from all political spectrums.

I would guess that many of those 14 Senators, including those who supported Liu, would disagree with you. There are those who believe Lie behaved imprudently and injudiciously over the last several years...years when it was clear he was on a track for a federal judicial appointment. And I would guess that those of the "Gang" who did not support a vote on Liu's nomination did not believe he fit the criteria for a straight up or down vote; criteria that was the basis of their pact.

Finally, isn't it up to the Senate itself, particularly those 14 Senators, to conduct their business as they see fit? In any event, seeing the lust for "payback" on a site as sophisticated as this doesn't bode well for the future of civil debate or otherwise addressing the huge banquet of intractable problems we face.

My only point about Bork was to try to point out that the fixation on "payback" has led and will continue to foster a never ending cycle of revenge seeking that reminds one of watching "The Godfather" trilogy.

BTW.....I concede it is likely that Obama has a very good chance at winning reelection (despite the fact that history indicates otherwise).....but it is unbecoming and presumptuous of his supporters to presume and pronounce it......

"Both parties need to grow up and reject nominees only if they are truly incapable"

That sounds all well and good, but sadly that will likely never happen...Yes, democrats blocked some of Bush's nominees, but please Google "Clinton judicial appointment controversies"..Over 40 of his judicial nominees failed for various reasons..Also, Clinton had to seek Hatch's blessing to even nominate Ruth Bader Ginsburg...Clinton gave Hatch a list of nominees, and Ginsburg was way down on the list...Ginsburg probably wasn't even in Clinton's top 10...

As far as Mr. Bork, that is a classic conservative canard..Mr Bork had his FULL senate vote, 6 republicans voted NO on his confirmation....Bork left a paper trail a mile wide and a mountain high, he was an unapologetic right wing idealogue....He was not fit for a SCOTUS appointment....

I don't know how long you've followed the confirmation processes of federal judicial appointments by the Senate, but as to the Democrat Party extracting "payback"for Professor Liu.....there are those who might recall Judge Bork's confirmation process and....smile at your obvious frustration....